State v. Atkinson

CROW, Presiding Judge,

dissenting.

I respectfully dissent.

The bias of a witness and his feeling toward a party are never irrelevant. State v. Johnson, 700 S.W.2d 815, 817[2] (Mo. banc 1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1980, 90 L.Ed.2d 663 (1986). A party is not confined to answers elicited from a witness on cross-examination, but may prove the witness’ bias through extrinsic evidence. Id. at 817[3]. Showing the existence and extent of such bias is subject to the sound discretion of the trial court. Id. at 817[4].

My study of the transcript persuades me the receipt in evidence of the adult abuse petition filed by witness Sharp against Defendant did not, in the circumstances shown here, constitute reversible error.

First, I find no indication in the transcript that the petition was shown to the jury. Consequently, no juror learned its contents by reading it.

Second, I find no indication in the transcript that the petition was read aloud by anyone in the presence of the jury.

Third, only fragmentary references were made to the petition during cross-examination of witness Sharp. She conceded she had been the object of a “violent, angry outburst” by Defendant, but explained it was “[ajfter I hit him first.”

Shown the petition, witness Sharp admitted filing adult abuse actions against Defendant twice. She acknowledged Defendant threatened her in January, 1990. When her attention was directed to the “narrative parts” of the petition, she testified:

He had pulled me over, I did not stay where he was at. I did not know what he was wanting to talk to me about but he had pulled up and I had just left. I wrote harassment down there because I did not know what it pertained to.
Q But what about the threatening part?
A Before, yes, he had while he was at the house.
Q And part of that is all about he hit you with his fist; is that correct?
Before the witness answered, defense counsel objected and a sidebar conference ensued. When it ended, witness Sharp’s testimony continued:
Q You filed this order of protection or request for petition, for order of protection on January 11, 1990, is that right?
A Yes.
Q And I believe you stated that that act occurred on January 8, 1990?
A Yeah, probably, approximately.
Q And the reason — I mean the reason for one of these things is to get something from a judge that keeps him away from you; is that right?
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A Yes.
Q And I think in here you stated that you had done that one time before?
A Yes. It goes for a limited period of time which I had seen him before my time was ever up.... Events like this are history as far as I am .concerned.

I find nothing in the record indicating the jury was informed witness Sharp had accused Defendant of causing her physical harm, attempting to physically harm her, unlawfully imprisoning her, tearing up her car so she could not leave, or tearing the phone from the wall so she could not call for help. I therefore respectfully disagree with the majority opinion’s conclusion that details of Defendant’s uncharged conduct were placed before the jury by the adult abuse petition.

The State’s theory was that witness Sharp testified as she did because she was intimidated by Defendant. Her earlier effort to obtain official protection from him could be viewed by a factfinder as indicating Defendant is capable of instilling fear in witness Sharp if she crosses him. In my *522view, this was a proper subject to consider in assessing her credibility.

Because the details of the adult abuse petition were not revealed to the jury, receipt of the document itself in evidence had little, if any, adverse effect on Defendant. Accordingly, I am unwilling to convict the trial court of reversible error in receiving the document in evidence.

I would deny Defendant’s first point and, as I find no merit in his second, I would affirm the judgment.